New Delhi, October 17 : A five-judge Constitution bench of the Supreme Court has declined to grant legal recognition to same-sex marriages. Chief Justice of India D Y Chandrachud, presiding over the bench and delivering the verdict on 21 pleas seeking legal validation for same-sex marriages, stated that the court’s role is to interpret the law, not create it, and any changes to the Special Marriage Act must come from Parliament.
Justice Chandrachud noted that four separate judgments were issued by different judges on the matter, with Justice Hima Kohli also on the five-judge bench. He directed the Centre, states, and Union Territories to ensure that the queer community does not face discrimination. The Chief Justice stressed that queerness is a natural and age-old phenomenon, irrespective of whether it is urban or elitist.
Justice Sanjay Kishan Kaul expressed agreement with the Chief Justice on granting certain rights to queer couples. He emphasized that non-heterosexual and heterosexual unions should be viewed as two sides of the same coin, and recognizing non-heterosexual unions is a step towards marriage equality.
Justice S Ravindra Bhat, while reading out the operative part of his verdict, both agreed and disagreed with the Chief Justice’s views.
Chief Justice Chandrachud reiterated that the decision to change the Special Marriage Act rests with Parliament, emphasizing the court’s interpretative role in the law. He pointed out that the Solicitor General, Tushar Mehta, had informed the court that the Centre would form a committee to determine the rights and entitlements of individuals in queer unions.
In the operative part of his verdict, Chief Justice Chandrachud directed the authorities to raise awareness about queer rights and prevent sex-change operations on intersex children who cannot fully comprehend the consequences.
He also directed the police to conduct a preliminary inquiry before registering an FIR against a queer couple regarding their relationship. The Chief Justice noted that queerness is not limited to urban areas or specific classes, and assuming so erases the reality of queerness.
He highlighted that marriage is not a static and unchanging institution, emphasizing that the right to choose a life partner is integral to the right to life and liberty under Article 21 of the Constitution. The recognition of such partnerships is essential, as failure to do so would be discriminatory.
The Chief Justice affirmed that all individuals, including those who identify as queer, have the right to assess the moral quality of their lives. He stressed that equality demands that queer individuals are not subjected to discrimination. He added that the law cannot presume that only heterosexual couples can be good parents, as this would constitute discrimination against queer couples.
The five-judge bench had reserved its verdict on May 11 after a 10-day marathon hearing. During the proceedings, the Centre had expressed concerns about the potential consequences of a constitutional declaration on same-sex marriage and argued against such a move.
The bench clarified that it would not delve into personal laws governing marriages while deciding on the pleas seeking judicial validation for same-sex marriages. It emphasized that the traditional notion of a marriage between a man and a woman is not absolute and solely based on gender.
Some of the petitioners had urged the Supreme Court to use its authority to encourage societal acknowledgment of same-sex unions to ensure that LGBTQIA++ individuals lead dignified lives similar to heterosexual individuals. LGBTQIA++ encompasses lesbian, gay, bisexual, transgender, queer, questioning, intersex, pansexual, two-spirit, asexual, and ally individuals.
On May 3, the Centre informed the court that it would form a committee to address the “genuine humane concerns” of same-sex couples without delving into the issue of legalizing their marriages. The court had previously asked whether social welfare benefits, such as opening joint bank accounts or nominating a life partner in provident funds and pension schemes, could be extended to same-sex couples without legalizing their marriages.
